California Penal Code § Section 240 – Assault

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California Penal Code (CPC) §240 – Assault – California's Assault  law (also known as “Simple Assault” applies whenever anyone willfully does anything that would result in applying force to another person while having facts that would make a reasonable person realize the act would result in applying force to someone else. To be convicted, you have to have the present ability to apply force and you can't have acted in self-defense or defense of another.

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Simple Assault

Is a Misdemeanor crime. Conviction can result in six months in a county jail, a fine of up to $1,000, or both jail time and a fine.

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What Does California Penal Code §240 (Assault) Prohibit?

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In sum, to be guilty of Assault under CPC §240, you must:

• Do something that would result in applying force to a person; AND,

• Do the act willfully; AND,

• Be aware of facts that should make you realize your act would result in applying force; AND,

• Have the present ability to apply force; AND,

• Possess no legal excuse.

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Defining “Assault” Under California Penal Code §240

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To convict you under CPC §240, the prosecution must prove the following beyond a reasonable doubt:

• Act/Directly And Probably…: You did an act that, by its nature, would directly and probably result in the application of force[1] to another person; AND,

• Willfully: You did the act willfully; AND,

• Aware Of Facts/Reasonable Person...: When you acted, you had facts that would make a reasonable person realize the act would directly and probably result in applying force to someone; 

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• Present Ability/Apply Force: When you acted, you had the present ability to apply force; AND,

• No Legal Excuse: You didn't act in self-defense or in defense of someone else.

 

Example:  Defendant Dick is a professional football player. He is about to tackle Victim Vern during a game when a penalty flag is thrown, indicating that play has stopped and no one should even attempt to strike another player. Dick, however, lunges at Vern, shocking Vern and sending him falling backward. Vern shatters his pelvis as he hits the ground. He calls for stadium police and has Dick arrested for Assault under CPC §240. Dick insists that he was “just playing the game.” Should Dick be convicted?

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Conclusion: Dick willfully lunged at Vern, clearly having the present ability to strike Vern, and (since he was facing Vern on a football field) he possessed facts that should've led him to realize that lunging would've resulted in force being used against Vern. Thus the act itself would've directly and probably resulted in the use of force, and while Dick may have believed that the rules of the game allowed him to commit Assault, he didn't act with a legal excuse. A penalty flag was thrown; Dick was thus obligated to refrain from striking - or even appearing to strike - another player. Dick, therefore, should be convicted.

 

Penalties For Assault Under CPC §240

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As noted previously, Simple Assault is a Misdemeanor under California law. If you're convicted of the charge, you face up to six (6) months in a county jail, a fine of up to $1,000 (one-thousand dollars), or both a fine and jail time.

 

Defenses To California Penal Code §240 – Assault

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Four of the most common defenses against a charge of Assault are:

 

You Were Defending Yourself or Someone Else

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Example: Defendant Mike is drinking with friends at a tavern when he witnesses Victim Benni harassing   Patron, a woman, by touching her in ways she says are offensive. Mike asks Benni to leave Patron alone, but Benni refuses, telling Mike “to find” his “own girl.” Tensions quickly mount. Mike, realizing that Benni won't leave Patron alone unless he's threatened, raises his fist and tells Benni to leave or Mike will punch him. Benni leaves, finds a police officer, and reports Mike for Assault under §240. Should he be convicted?

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Conclusion: Mike willfully did something that would directly and probably result in force being used against Benni (raising his fist to punch Benni) and possessed facts that should've led him to realize that the act would lead to applying force against Benni. Mike also had the present ability to hit Benni, since Benni was scared into submitting to Mike. However, Mike was trying to defend Patron against Benni's unwanted advances, which included physical acts (offensive touching). Since Benni wouldn't relent unless some sort of force was used – and since Mike didn't use more force than was required or for longer than was needed – Dale should be acquitted. He was defending someone else, which provides Mike a legal excuse.

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You Didn't Have The Present Ability To Use Force

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Example: Victim Vail is walking on one side of a suburban street. Her worst enemy, Defendant Deena, walks in the opposite direction on the other side. Vail decides to ignore Deena but Deena sees her, whistles to get Vail's attention, and, once Vail looks at her, punches her left palm with her right fist while glowering at Vail. Vail is frightened. She believes that Deena will cross the street to hit her. She finds a   police officer and has Deena arrested for violating CPC §240. Should Deena be convicted of the charge?

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Conclusion: Deena willfully punched her palm with her fist, an act that suggests the direct and probable result would be application of force.  Knowing that Vail was her worst enemy, Deena would also have been aware of facts that could've led Vail to assume that Deena was going to apply force against Vail. Deena had no legal excuse for her act. However, Deena was on the opposite side of a street when she made the offending gesture. A reasonable person wouldn't assume Deena had the present ability to strike Vail because she was too far away at the time. Given these facts, Deena should be acquitted.

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You Didn't Act Willfully

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Example: A bicyclist, Defendant Daniel, is riding in the Tour de California. At one point he's riding along a narrow street inside a village. This is when another bicyclist, Competitor, pulls alongside Daniel and runs him off the road. Daniel barely avoids hitting a spectator, Victim Violet, who, fearing that she would be struck, finds a police officer and reports Daniel for Assault under CPC §240. Should Daniel be convicted?   

Conclusion: While Daniel rode his bicycle toward Violet without self-defense as an excuse, giving him the present ability to strike Violet, and while it is reasonable to assume that Daniel knew of the presence of spectators watching the race, he didn't intentionally steer his bicycle toward Violet; he was forced off the road by Competitor and unwittingly rode into the crowd. Therefore, since Daniel didn't willfully commit the act that would've constituted the Simple Assault, Daniel should be acquitted of the charge.

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The Accusation Is False:

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Example: Defendant Darin decides to end her relationship with her girlfriend, Victim Valerie, but the breakup doesn't go well. Valerie, convinced that Darin is seeing someone else, decides to get revenge by telling police that Darien committed an Assault against Valerie even though Valerie knows that no such thing occurred. Valerie has Darien arrested and charged under §240. Should Darin be convicted?

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Conclusion: As the facts indicate, Darin committed none of the elements of the crime of Assault; Valerie simply created an accusation and charged it against Darin because she wanted revenge.    Therefore, since no one should be convicted in the United States of a crime she or he didn't commit (and because there's no evidence that Darin committed an offense), Darin should be acquitted. The accusation against her is simply false.

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Related Offenses:

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Note: The crimes below are described as “related” because they're frequently charged with CPC §240 and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

 

The California Penal Code includes several offenses related to Assault, among them:  

Battery (CPC §242), Assault With A Deadly Weapon (CPC §245(a)(1)), Disturbing The Peace (CPC §415), Assault On A Public Officer (CPC §217.1(a)), Assault With Caustic Chemicals (CPC §244) and Throwing Dangerous Object At A Motor Vehicle (California Vehicle Code [CVC] §23110(b)).

 

Battery

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Battery (CPC §242) occurs in California when anyone willfully and unlawfully uses force against another person. An act is committed “willfully” when done it willingly or on purpose. You don't have to intend on breaking the law, hurting someone else, or gaining any advantage to act “willfully.” Battery is related to Assault because Assault often becomes Battery upon completion of the crime.

If you're convicted of Battery, the penalty may be:

• A term of up to six (6) months in a county jail; OR,

• A fine of up to $1,000 (one-thousand dollars); OR,

• Both imprisonment and a fine.

 

Note: A slight touch can be enough to commit a Battery, if it's done in a rude or angry way. The touching doesn't have to cause pain or injury.

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To convict you under CPC §242, the prosecution must prove the following beyond a reasonable doubt:       

You willfully and unlawfully touched someone in a harmful or offensive manner. Additionally, you didn't act in self-defense or defense of someone else, or while reasonably disciplining a child.

 

Example: A divorced father, Defendant Derek, has custody of his five-year-old son, Victim Vincent, and decides to take him to a zoo. While there, Vincent strays close to the edge of a deep sunken pit used as a gorilla habitat. Derek has to grab Vincent by the arm, causing the boy's skin to bruise, but saving him from falling into the pit. Later, Vincent's mother, Ex-Wife, sees the bruises, finds out what happened and reports Derek for Battery on Vincent. He's arrested. Should Derek be convicted of the accusation?

 

Conclusion: Derek willfully touched Vincent in a way that harmed him by leaving bruises on Vincente's skin. However, Derek, Vincent's father, was trying to protect his son from immediate harm by pulling Vincente away from a dangerous condition. This should be considered reasonably necessary discipline consistent with Derek's duties as young Vincent's father. Derek, therefore, should be acquitted.

 

Assault With A Deadly Weapon

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Assault With A Deadly Weapon (CPC §245(a)(1)) occurs in California whenever anyone assaults another person with a deadly weapon other than a firearm or when anyone assaults another person using force likely to produce great bodily injury.

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The prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of the case, making Assault With A Deadly Weapon a “wobbler” crime. Assault With A Deadly Weapon is related to Assault because Assault can involve using deadly weapons or force likely to produce great bodily harm.

If you're convicted of Assault With A Deadly Weapon, the penalty may be:

• A term of up to four (4) years is state prison; OR,

• A fine of up to $10,000 (ten-thousand dollars); OR,

• Both a fine and imprisonment.

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Note: Force can be applied “indirectly by causing an object or someone else to touch”another person.

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California Criminal Jury Instructions – Assault With A Deadly Weapon

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To convict you under CPC §245(a)(1),the prosecutor must prove the following beyond a reasonable doubt:

You assaulted someone with a deadly weapon other than a firearm or used force likely resulting in great bodily injury. You acted willfully and had facts that would lead a reasonable person to realize the act would result in using force. You also had the ability to use force likely to produce great bodily injury or   assault someone and you weren't acting in self-defense or defense of another person.

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Example: Police Officer responds to a call reporting that a young man, Defendant Dante, struck a young woman, Victim Fannie, with a bat. Police Officer arrives at the scene and finds Dante holding a “whiffle ball” bat made of lightweight hollow plastic. Fannie reports that Dante used the bat to strike her in the head. Dante admits that he did it and that he intended to do so. Police Officer arrests Dante for violating CPC §245(a)(1). Should Dante be convicted of the charge?

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Conclusion: Dante willfully struck Fannie in the head with a bat, ordinarily a form of deadly weapon that would be covered under §245(a)(1). He obviously possessed facts that would suggest his act would result in using force, since he was trying to hit Fannie, as he admitted. He wasn't acting in defense of anyone, and he had the present ability to commit an assault, since he committed one. However, a whiffle ball bat isn't an “inherently deadly” weapon. While bats made from other materials might be deadly, the bat Dante used wouldn't be covered by the statute. Dante, therefore, should be acquitted.      

 

Disturbing The Peace

 

Disturbing The Peace (CPC §415) occurs in California whenever anyone unlawfully fights or challenges another person to fight in public, intentionally disturbs another person with unreasonable noise, or uses offensive words likely to provoke violence in public. The charge is related to Assault because Disturbing The Peace can also occur in the context of an Assault, resulting in charges of both in the same trial.

If you're convicted of Disturbing The Peace, the penalty may be:

• A term in the county jail of up to 90 (ninety) days; OR,

• A fine of up to $400 (four hundred dollars); OR,

• Both a fine and imprisonment.

 

Note: Prosecutors will sometimes use a Disturbing The Peace charge in an effort to get a defendant to plead guilty to some kind of offense.     

     

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California Criminal Jury Instructions – Disturbing The Peace

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Example: Defendant Damian is being shouted at by his neighbor, Victim Carl, outside Damian's home. Carlfollows Damian into Damian's home, and outside again, yelling all the while. Then, as Carl returns to his home, Damian follows. Carl allows him entrance. Damian challenges Carl to a fight when both are inside Carl's home. Carl calls the police and has Damian arrested for violating §415(1). Damian insists that Carl started the fight and that Vint should be arrested. Should Damian be convicted of the charge?

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Conclusion: It's irrelevant that Carl instigated the row by shouting publicly at Damian, since Damian challenged Carl to a fight. However, while Carl might object to being challenged to a fight inside his own home, Carl house is not a public place. Damian, therefore, shouldn't be convicted under CPC §415(1).       

 

Assault On A Public Officer

 

An Assault On A Public Officer (CPC §217.1(a)) occurs whenever Assault is committed against persons ranging from the President of the United States to jurors and their immediate families. Persons protected by the statute are defined as “public officers” under California law (CPC §§ 830.1 and 830.5).

 

Since Assault On A Public Officer may be charged as a Misdemeanor or Felony, the crime is a “wobbler.” The offense is related to Assault because Assault can occur specially against public officers under state law.  

If you're convicted of Assault On A Public Officer (without “Three Strikes” sentence enhancement), the Felony penalty may be:

• A term of up to three (3) years in a county jail; OR,

• A fine of up to $10,000 (ten-thousand dollars); OR,

• Both imprisonment and a fine.

 

Note: The assault must be committed as retaliation or to prevent the officer from performing official duties.

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California Criminal Jury Instructions – Assault On A Public Officer

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To convict you under CPC §217.1(a), the prosecution must prove the following beyond a reasonable doubt:

You committed an assault on any one of the persons listed in the statute or CPC Sections 830.1 or 830.5. Additionally, you committed the assault in retaliation against the person or to prevent the person from performing official duties.

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Example: A former assistant public defender, Victim Vince, is walking along a public street. Defendant Doug, recognizing Vince to be an old high school classmate he didn't like, is about to pass him. Thinking he'd like to play a joke on his old enemy, Doug feigns punching Vince. Vince falls down as a result. He finds a police officer and has Doug arrested for violating §217.1(a). Should Vince be convicted?   

   

Conclusion: Doug willfully performed an act which would've resulted in harmful or offensive contact when he pretended to punch Vince. Doug possessed facts that would lead Vince to conclude as much, since he feigned striking Vince. He had no legal excuse. Additionally, Vince is a former assistant public defender, part of the class of persons protected by the statute. However, Doug didn't assault Vince in retaliation for performing his official duties or to prevent Vince from doing so; he just wanted to upset Vince because he didn't like Vince when they were school-mates. Thus Doug shouldn't be convicted.

 

Assault With Caustic Chemicals

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Assault With Caustic Chemicals (CPC §244) occurs whenever a “person… willfully and maliciously places or throws, or causes to be placed or thrown…  any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of [a] person.”

As the statute states, “'flammable substance" means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.” The crime is related to Assault because caustic chemicals can be used to commit Assault.

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If you're convicted of Assault With Caustic Chemicals, a Felony, the penalty may be:

• A term of up to four (4) years in a state prison; OR,

• A fine of up to $10,000 (ten-thousand dollars); OR,

• Both imprisonment and a fine.

 

Note:  “Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”

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California Criminal Jury Instructions – Assault With Caustic Chemicals

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To convict you under CPC §244, the prosecution must prove the following beyond a reasonable doubt:

You willfully and maliciously placed, threw, or caused a caustic chemical to be placed or thrown on someone else. When you acted, you intended on injuring the other person's flesh or disfiguring the person's body. Finally, you didn't act in self-defense or in defense of someone else.

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Example:  A political activist, Defendant Daphne, is sickened that Furrier plans on opening a shop in her town. She's also furious that a minor celebrity, Victim Victoria, is scheduled to appear to help promote Furrier's store. Daphne plans ruining Victoria's clothes as punishment. Daphne buys a bucket of “chum” (fish entrails and fish blood) and goes to the opening. She waits for Victoria to appear wearing a fur coat. Daphne splashes Victoria with the chum when she does, yelling, “Animal rights now!” Victoria, who is embarrassed, reports Daphne for violating §244 and has her arrested. Should Daphne be convicted?  

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Conclusion: Daphne committed an Assault. She willfully put Victoria in immediate fear of being struck with chum, knew that the act would result in force being applied against Victoria, had the present ability to commit Assault and had no legal excuse. However, since chum is not a “caustic chemical” under the statute, Daphne couldn't commit Assault within the meaning of the law she allegedly broke. She also threw chum to humiliate Victoria and ruin her coat, not to injure her flesh or disfigure her. Thus, while Daphne committed an Assault under CPC §240, she shouldn't be convicted of violating CPC §244.

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Throwing Dangerous Object At A Motor Vehicle

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Throwing Dangerous Object At A Motor Vehicle (CVC §23110(b)) is a crime when anyone, intending on doing “great bodily injury, maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm” at a vehicle or its occupant. The crime is related to Assault because an object thrown at a motor vehicle may result in an Assault charge and a charge of Throwing Dangerous Object At A Motor Vehicle in the same trial.

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If you're convicted of Throwing Dangerous Object At A Motor Vehicle, a Felony, the penalty may be:

• A term of up to three (3) years in a state prison; OR,

• A fine of up to $10,000 (ten-thousand dollars); OR,

• Both a fine and imprisonment. 

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Note: You don't have to have the ability to strike the vehicle to violate CVC §23110(b). The vehicle also doesn't have to be in motion for the Vehicle Code section to apply.

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California Criminal Jury Instructions – Throwing Dangerous Object At A Motor Vehicle

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To convict you under CVC §23110(b), the prosecution must prove the following beyond a reasonable doubt:

Intending on doing great bodily injury, you maliciously and willfully projected at a vehicle or its occupant a rock, brick, bottle, metal or anything capable of doing serious bodily harm.

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Example: A truck driver, Defendant Danielle, finishes a plastic bottle of soda and decides that she doesn't feel like disposing of the bottle by pulling over and throwing it into a trash can. She rolls down her window and carelessly tosses the bottle into the air. The container, however, strikes the windshield of the driver behind her, Victim Val, and causes Val to skid off the road. Val reports Danielle's truck for violating CVC §23110. Danielle is subsequently arrested. Should Danielle be convicted of the accusation?  

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Conclusion: Danielle willfully threw her bottle out her window. While it's highly debatable whether a plastic bottle is capable of doing serious injury under the circumstances, it's quite clear that Danielle didn't eject the bottle intending on doing harm to anyone; she just didn't want to stop to throw out her bottle. Thus her act wasn't actually malicious. It can also be argued that Danielle didn't throw the bottle at Val's vehicle, since she tossed the bottle from her window without paying attention to the facts of the circumstance. Therefore, Danielle shouldn't be convicted of the charge.  

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What Can I Do If I'm Charged With Assault?

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The State of California treats Assault as a serious offense. If you're charged with Assault, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

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Remember, a professional criminal defense attorney may be able to:

• Negotiate a lesser charge in a plea bargain;

• Reduce your sentence;

• Or even get charges dismissed completely.

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The attorneys at Monterey Peninsula Law Inc. have an excellent understanding of the local Monterey County courts and an extensive knowledge of California's criminal justice system. 

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If you or someone you know has been arrested for, or charged with, Assault, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

 

Our criminal lawyer will give you a FREE initial meeting to discuss your case and recommend a course of action. Even one hour talking to a true professional can change the way you view your case. Don’t face an  Assault & Battery Charge without representation. We at Monterey Peninsula Law Inc. are here to help.

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